Wahl v. White Sewing MacH. Co. , 45 Okla. 805 ( 1915 )

The final order appealed from in this case was made on September 5, 1913. The petition in error was filed in this court on Friday, March 6, 1914. Praecipe was filed, and summons in error was issued on April 21, 1914, and returned, showing service April 24, 1914. Thereafter defendant in error filed his motion to dismiss, alleging as grounds therefor that the proceedings in error were not commenced within the statutory period of six months from the date of the rendition of the judgment complained of. The motion to dismiss was overruled, and on February 3, 1915, defendant in error files his second motion to dismiss. It appears that this court erred in refusing to dismiss the appeal in the first instance for the reason that the record affirmatively shows that the plaintiff in error was one day late in filing his petition in error, but the appeal should also be dismissed on another ground. The summons in error was not issued or served within the statutory period. The general rule is that summons in error must be issued and served within the statutory period of six months provided for perfecting appeals. There is a well-defined exception to this rule, namely, that where summons in error has been issued within the six-month period, but service has not been obtained, the plaintiff in error may have 60 days from the issuance of the first summons in which to faithfully, properly, and diligently follow up his attempt to secure service. The case at bar does not come within this exception, for here no praecipe was filed or summons issued within the six-month period. We, therefore, must conclude that plaintiff in this action did not commence his proceeding within the statutory period. School Dist. No. 39, etc., v. Fisher, Treas.,23 Okla. 9, 99 P. 646; Durant v. Munford, 38 Okla. 552, 134 P. 50;Watkins v. Barnwell, 35 Okla. 205, 128 P. 511; Campbell v.Ruble, 40 Okla. 48, 135 P. 1050.

Dismissed.

All the Justices concur.